- (1.) This appeal under clause 15 of the Letters Patent is directed against the judgment and order dated June 23 1976, passed by a learned single Judge of this Court disposing of a writ petition. The certificate debtor whose objection under S. 37 of the Bengal Public Demands Recovery Act (hereinafter referred to as the Bengal Act) as a lack of jurisdiction on the part of the Certificate Officer to issue a certificate succeeded before the Board of Revenue but was overr5uled by the learned single Judge, is the appellant before us. The short point, said to be a point of first impression by the learned Judge, that arises for consideration in this appeal is as to whether on a request being made under S. 5 of the Revenue Recovery Act (hereinafter referred to as the Central Act) to the Collector of a district by the Employees' State Insurance Corporation (hereinafter referred to as the Corporation) for recovery of its demands coming within the meaning of S. 73D of the Employees' State Insurance Act, 1948, the Certificate Officer, who is not Collector of the district could have himself issued the certificate on his own initiative.
(2.) The facts are not in dispute and may be set out briefly. On March 5, 1968, the Corporation sent a letter of request to the Collector of 24-Parganas under s. 5 of the Central Act for recovery of a sum of Rs.18,247.05 alleged to be due on account of employer's special contribution from the appellant now before us, the certificate debtor. The said request being received in the office of the Collector was forwarded by the office superintendent to the certificate officer, 24-Parganas on March 8, 1968. Thereupon on April 6, 1968, the certificate officer drew up a certificate and caused it to be filled in his office under Ss. 4 and 6 of the Bengal Act and caused the copy of the certificate along with the notice under S. 7 of the said Act to be served upon the certificate debtor. On September 6, 1968, the certificate debtor filed an objection under S. 37 of the said Act raising various objections. The only objection which is now relevant for the present appeal was to the effect that the certificate officer not being the Collector could not have entertained the request under S. 5 of the Central Act nor could he have himself filed the certificate under S. 4 of the Bengal Act. The Corporation contested such an objection by filing a rejoinder thereto. The certificate officer overruled that objection by an order dated November 11, 1968 though he gave no reasons for overruling the same. The certificate debtor preferred a revisional application under S. 53 of the Bengal Act which was heard and disposed of by the Additional District Magistrate, 24-Parganas. By an order dated May 27, 1969, he overruled the aforesaid objection and upheld the order of the certificate officer though he assigned his own reasons therefore and the reason assigned was ?arrear of land revenue is under the Bengal Public Demands Recovery Act 1913 a public demand payable to the Collector for the recovery of which a certificate under S. 4 of the P.D.R. Act may be signed and filed by the certificate officer. Section 73D of E.S.I. Act says that Employer's Special Contribution be recovered as if it were an arrear of land revenue. Therefore, initiation of the instant certificate proceeding under S. 4 P.D.R. Act was perfectly legal and within the certificate officers' jurisdiction.? On a further revision the Divisional Commissioner by his order dated September 29, 1969, reversed the decision of the Additional District Magistrate and upheld the objection raised by the certificate debtor. He held that on receipt of a request under S. 5 of the Central Act only the Collector of the District could initiate the recovery proceedings and not the certificate officer who is not the Collector. On behalf of the Corporation reliance was sought to be placed on S. 3A of the Central Act introduced by the West Bengal Amendment Act 17 of 1966, but the Commissioner held that the said provision can have application only when the certificate under execution is one received on transfer from another district and not in a case like the present one. The Corporation then moved further in revision against the order of the Divisional Commissioner before the Board of Revenue, but the Board by its order dated March 9, 1970 upheld the decision of the Divisional Commissioner and the reasons given therefore.
(3.) The Corporation then challenged the orders passed by the Divisional Commissioner and the Board of Revenue in a writ petition which was allowed by the learned single Jude by the order now under challenge in the present appeal. The learned single Judge set aside the order passed by the Divisional Commissioner and the Board of Revenue and overruled the objection of the certificate debtor. The learned Judge took the view that on a reasonable interpretation of S. 5 of the Central Act the clause ?as if the sum were payable to himself? at the end of the section must be interpreted to qualify both the first and the second part of that section; therefore, the sum which the Collector proceeds to recover on a request made under S. 5 of the said Act is deemed by legal fiction to be not only an arrear of land revenue which had accrued in his own district but also to be a sum payable to himself because of the aforesaid qualifying clause. According to the learned Judge unless such an interpretation is made, the Collector would not be able to recover the amount even himself on a request being made under S. 5 of the Central Act. Adopting such an interpretation, the learned Judge held that on a request being made under s. 5 of the Central Act, when the sum becomes a public demand payable to the Collector, the certificate officer necessarily becomes competent to issue a certificate for recovery of that sum under S. 4 of the Bengal Act. The other contention of the Corporation that because of S. 3A of the Central Act the certificate officer is competent to issue a certificate was, however, overruled by the learned Judge as according to him that provision has no bearing on the point at issue.;